Estate of Brutsche v. City of Federal Way

MEMORANDUM **

The Estate appeals from a jury verdict in favor of the appellees, alleging that the trial court 1) failed to give proper jury instructions, 2) improperly excluded evidence, and 3) incorrectly determined that collateral estoppel barred its property damage, trespass, and waste claims. We affirm.

The district court did not err in instructing the jury. The instructions as a whole correctly stated the substance of the law and were not misleading. See Fikes v. Cleghorn, 47 F.3d 1011, 1013 (9th Cir. 1995). The Estate’s argument that the district court erred in not offering its suggested definition of “active resistance” has no merit. The district court used Ninth Circuit model jury instruction number 9.22, which correctly outlines the excessive force factors outlined in Graham v. Connor, 490 U.S. 386, 393-94 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989).

Further, the court did not err in failing to instruct the jury on the potential for municipal liability based on the use of excessive force, because that claim was dismissed before trial.

Nor did the district court err in its evidentiary rulings. The decision to exclude rebuttal testimony on the subject of “active…